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Forcible Entry and Detainer

Evictions in the Chicago Courts in the
year 2007 – The good, the bad, the
“Not-So-Hot” and Recommendations for
“Reform”
=============================
Presented to the
CHICAGO BAR ASSOCIATION
CONSUMER LAW COMMITTEE
December 6, 2007 by
Paul Bernstein, Esq.
THE ILLINOIS STATUTE
 The Illinois Statute on Civil Procedure
governs. (Included in your materials)
 However, in that Chicago is a “Home Rule”
jurisdiction, the Chicago Residential Landlord
and Tenant Ordinance (“RLTO”) substantially
modifies the RLTO.
 STILL, eviction proceedings are barbaric and
procedures need significant statutory
changes.
2 December 6, 2007
THE CHICAGO RLTO

 Adopted in 1986
 Without Mayor Harold Washington, there
would be no such Ordinance in effect.
 Often called the “Tenants Bill of Rights”, the
RLTO “leveled the playing field”, at least a
bit, as to the relative rights of landlords and
tenants. (A copy of the RLTO is Included in
your materials)
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PURPOSES AND POLICY OF THE RLTO
– FIRST SECTION

 The public policy of the RLTO is made very, VERY
clear in the very first section of the Ordinance – Sec.
5-12-010.
 That expression of public policy is reflected in many
parts of the RLTO, especially
 In Section 5-12-150 on Retaliatory Eviction,
particularly compared to the State Law.
 However, Retaliation is not a favorite of our courts.

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What Leases covered by RLTO?
 Every residential lease is covered, but with
certain exceptions.
 Main exception is SIX FLATS or less that are
OWNER occupied.
 Surprise – leases of single family residence
are covered, as long as owner does not live
there.
 Surprise – leases of condominiums are
covered.
 Subsidized housing leases are covered as
5 well. December 6, 2007
DEFINITIONS – Sec. 030

 “Dwelling Unit” includes common areas and
all facilities supplied to tenants.
 “Landlord” means “the owner, agent, lessor
or sublessor, or the successor in interest of
any of them”
 “Owner” includes title holders and beneficial
owners of land-trusts .

6 December 6, 2007
RLTO – REPAIRS - I

 Tenants can demand repairs and have remedies.
 No similar counter-part in the Illinois law.
 Sec. 5-12-070 – “The landlord shall maintain the
premises in compliance with all applicable
provisions of the municipal code and shall
promptly make any and all repairs necessary to
fulfill this obligation.”
 Sec. 5-12-110 provides an extensive listing of
TENANT REMEDIES.

7 December 6, 2007
RLTO – REPAIRS - II
 “Repair and Deduct” – Sec. 5-12-110(c) - Minor
Defects.
 Rent “REDUCTION” – Sec. 5-12-110(d) – Major
Defects.
 14-day letters required under (c) and (d). – Tricky
area.
 More extreme situations – overview, time permitting.
 Even though retaliation not allowed (5-12-150 of the
RLTO), very often, exercises of remedies results in
eviction action being filed by the landlord -
Retaliation.

8 December 6, 2007
SECURITY DEPOSITS
 Very significant provisions to encourage landlords
to realize this is the tenants’ money.
 Commingling; receipts; interest; return of
deposits; transfer of title; damages provided by
the RLTO, and
 MY favorite section, Section 5-12-180 on
attorney’s fees….also applies to defense of
retaliatory evictions, BUT if the landlord files a
“Joint Action” and rental is covered by RLTO, the
landlord’s attorney can NOT recover legal fees!
 Lawrence v. Regent Realty.
 Pitts v. Holt.
9  Other important cases….see
December 6, 2007 LAF discussion hand-
TERMINATION OF TENANCIES –
Section 5-12-130 – Landlord Remedies

 Non-Payment of Rent – Five Day Notice
 Violation of lease provisions – RLTO v. State – Ten Day Notice
 Failure to Maintain
 Disturbance of Others
 Abandonment
 Waiver of right to terminate lease
 Notice of Renewal of Rental Agreement
 Notice of Refusal To Renew Rental Agreement
– Notices to terminate month-to-month tenancy
– Notice of non-renewal of written lease
– 60-day provision if notice not timely given

10 December 6, 2007
COMMON DEFENSES TO
LEASE TERMINATIONS

 5-day notice served on 1st day of month
provides that lease will terminate on the 5th
day of the month. BAD NOTICE.
 30-day Notice of Termination of Tenancy
given on 2nd day of month not effective until
end of following month – premature filings.
 5-day notice given on Monday – 5th day is
Saturday and eviction filed on Monday.
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PROHIBITED PROVISIONS – Section 5-
12-140 of RLTO

 Waiver of Jury Demand prohibited
 No limitation of liability
 No confessions of judgment
 No waiver of termination notices allowed
 No payment of landlord attorneys fees except as
allowed by law
 Ability to terminate lease early must go both ways
and be a part of a separate notice
 Limits on late-payment-of-rent charges
 Two months rent to tenant if landlord tries to
enforce an illegal provision
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PROHIBITED ACTION BY LANDLORD
Section 5-12-150 of RLTO - I

Prohibition on Retaliatory Conduct

 “It is declared to be against public policy of the City of
Chicago for a landlord to take retaliatory action against a
tenant except for violation of a rental agreement or
violation of a law or ordinance.”
 “A landlord may not knowingly terminate a tenancy,
increase rent, decrease services, bring or threaten to
bring a lawsuit against a tenant for possession or refuse
to renew a lease or tenancy because the tenant has in
good faith:”

13 December 6, 2007
PROHIBITED ACTION BY LANDLORD –
Section 5-12-150 of RLTO - II

 Complained of Code violations to City
 Complained to Community Org. or media
 Sought assistance of same as above
 REQUESTED LANDLORD TO MAKE REPAIRS
 Became a member of tenants organization
 Testified in court or admin. Proceedings
 Exercised ANY right or remedy provided by law

14 December 6, 2007
PROHIBITED ACTION BY LANDLORD –
Section 5-12-150 of RLTO - III

 If landlord violates this section, tenant has
a defense.
 Damages are several – read the last
paragraph of Sec. 5-12-150.
 Rebuttable Presumption if prohibited
action by Landlord within 12-months after
tenant takes protected action(s).
 PRESUMPTION IS REBUTTABLE

15 December 6, 2007
PROCEDURES - LANDLORD
 Notice of termination of tenant served
 Time period gone by
 Filing of forcible entry and detainer case
 “Single” Action, and why do it that way
 Service: Sheriff; special server; posting
 Time table – assume last date of notice are Mon - Fri:
– Five-day notice: Served 10/2 – ends 10/8
– File on 10/9 – 15 days to trial date
– “Return Day” is 10/24
– That’s a trial date and tenant may be evicted that date with
either a 7 or 14-day stay, so tenant could be OUT of
possession – and depending on how quickly the Sheriff can do
what the Sheriff needs to do, the tenant can be on the street
in about one month’s time.

16 December 6, 2007
ADVANTAGE – LANDLORD - I
 In that the legal forms are basic and easy to fill-in, time
of counsel for landlord to create and file complaints and
summons is very modest.
 AND, the landlord has the advantage of knowing
EVERYTHING there is to know about the tenant and the
tenant’s tenancy.
 Landlords’ attorneys also have standard and
customizable forms of discovery including REQUESTS
TO ADMIT.
 Higher volume landlord attorneys also have the
advantage of “stacking their cases” so that when their
first case is called, the attorneys for all litigants not
involved in that law firm’s cases just wait until counsel
with the stack gets through the entire stack….

17 December 6, 2007
ADVANTAGE LANDLORD - II
 SUGGESTED REFORM: A judge or judges should arrive early
to take all “AGREED ORDERS” BEFORE Court convenes so that
“from time-to-time” lawyers or lawyers with multiple court-
rooms to cover can move on to other courtrooms.
 SUGGESTED REFORM: Volume plaintiff lawyers should be
taken at the end of the call.
 Many tenants think that they will be before a Judge like
“Judge JUDY”! Not so.
 Tenants are, in my judgment, misinformed:
 VIDEO that is now shown in Room 1402
 SIGN outside eviction courtrooms – “AFTER” you’ve been
evicted
 EVERY TENANT MUST HAVE AN ATTORNEY.
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DETAILS – Landlord Advantages
 Landlord has adequate time to prepare
 Tenant not given a “full deck of cards”
 Absolute need for Tenants to have attorney
 Lawyers Committee for Better Housing studies,
past and present
 NEED to file JURY Demand and procedure when
Jury Demand is filed – case continued 7 days
 Abuses with POSTINGS
 Tenants have little time to prepare based on dates
for progress of case, so Jury Demand essential.
 CUSTOMARY “First time up” Order in Jury Room

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SOME FACTS
 About 35,000 evictions per year in Cook County
 Average eviction case for Pro Se tenant is about two
minutes.
 Landlord’s proof
 Tenant’s Pro Se defenses
 BUT, tenant does not know the procedure and does not
know the law: Implied Warranty of Habitability;
“Rebuttable Presumptions” in Retaliation cases;
“Germane” defenses and Non-Germane Defenses.
 Eviction means loss of one’s home, schools of the
children and the occupants community and perhaps
homelessness.

20 December 6, 2007
TENANTS’ LAWYERS
 Answer NOT required but suggested.
 Affirmative Defenses: Retaliation; Breach of Implied
Warranty of Habitability.
 Right to have Jury trial.
 Right to have discovery: Interrogatories; Requests to
Admit; Requests for Production of Documents;
Depositions.
 At a disadvantage as landlord lawyers’ clients are
“commercial clients”, pay by the hour and should be
billed monthly…..while most residential tenants cannot
pay legal fees on a “pay-as-you-go” basis and tenants’
lawyers must rely on 5-12-180 of the RLTO to obtain
their legal fees.
21 December 6, 2007
USE AND OCCUPANCY - I
 Use and Occupation or Use and Occupancy.
 Rent during the pendency of the eviction proceedings –
important issue when a jury demand is filed to due back-
log in Jury room.
 Hearing on Use and Occupancy – pictures, responses,
preparation, likely result and Unlikely result.
 What happens if the tenant fails to pay the Court ordered
Use and Occupation? At the moment, its eviction as a
sanction for failure to obey a court order. (This is an
appeal on this issue going on now and although as of now
the Judges in the Jury Room do not enter RETROACTIVE
“Use and Occupancy” awards, suppose the tenant has or
had a good defense to the eviction in the first place?
Unlike Preliminary Injunction matters, the Courts do NOT
go into these details and often tenants, in my view, are
improperly and unfairly evicted for the unintended failure
to pay Use and Occupancy.
22 December 6, 2007
USE AND OCCUPANCY - II
 SUGGESTED REFORM: Let landlord file Motion for Use and
Occupancy with Eviction Complaint. Speeds up the process.
 SUGGESTED REFORM: Preliminary hearing on whether
affirmative defenses of Breach of Implied Warranty of
Habitability” and/or “Retaliatory Eviction” likely to prevail
BEFORE hearing on Use and Occupancy – if so, eviction
dismissed and landlord goes into small claims court only.
 SUGGESTED REFORM: No eviction for non-payment of U&O
unless clearly contumacious and intentional failure to comply
with payment order, and maybe not even then.
 SUGGESTED REFORM: Lawyers for LL & T required to
negotiate in good faith on what the U&O should be AND enter
agreed orders accordingly, OR else, Judge will take failure to
negotiate before a Court hearing on the subject and act
accordingly, pursuant to standards or general conditions
noted on a WEB site on the Internet that the eviction judges
should have.
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TENANT RESOURCES AVAILABLE
 Bench Book (One of the handouts)
 Booklet of CBA on this topic
 ListServ conversations
 Case law – Summary of case law from Other resources,
such as Paul Bernstein web site at:
http://www.paulbernstein.net and
 Lawyers Committee for Better Housing
at: http://www.lcbh.org and
 Metropolitan Tenants Organization
at http://www.tenants-rights.org
 Illinois Pro Bono Web site:
http://www.illinoisprobono.org/
 Many other resources we should collaborate and add

24 December 6, 2007
SUGGESTIONS FOR CHANGE - I
 Judges to have agreed Internet WEB site
 Procedures in each court-room
 Legal forms in common use
 Standard Jury instructions
 Admonitions to tenants – Get a lawyer – Lists
 Public Resources Available
 General standards on Use and Occupancy
 Failure if not exercise good-faith in U&O
matters
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SUGGESTONS FOR CHANGE - II
 Publish and hand out Bench Book now and as
REVISED.
 Make Bench Book Fairer and included
uncertain issues and alternatives.
 Scheduling of motions and Courtesy Copies.
 Handling of AGREED Orders both before day
of hearing and on day of hearing.
 No preferences to high-volume lawyers…
schedule them at 10:30 or 11:00.

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SUGGESTONS FOR CHANGE - III
 Pay lawyers for tenants who WIN, a fair fee
based on AGREED standards for
compensation…..keeping in mind the
CONTINGENT nature of representing most
residential tenants, and have standards on the
web-site that the Judges will take into
consideration.
 For Judicial economy and so as to prevent
proliferation of law suits, allow supposedly
“NON-Germane claims as counterclaims in
evictions…and determine in one law suit all the
actions and causes of action the landlord and
tenants each have against each other.
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OTHER ISSUES
 When is “rent” NOT rent - Section 8
 Foreclosure procedures and the RAW POWER OF BANKS.
 Germane vs. Non-Germane
 Meaning/examples of Habitability
 Retaliation and presumptions rebutted
 Constructive Eviction
 Need an expert to testify on value
 Proving building code violations
 Ability of tenant to testify
 Class actions

28 December 6, 2007
PAUL BERNSTEIN’S SUGGESTIONS - I
 NO TENANT SHOULD EVER APPEAR IN EVICTION COURT
WITHOUT A LAWYER.
 There are reasons why ALL lawyers should be interested in
and participate in handling evictions….between LAF and
LCBH, only about 5% of annual evictions have lawyers
representing tenants.
 Tenants can seldom win – held to the same standards as a
lawyer as to the LAW and PROCEDURE.
 This barbaric procedure – putting someone’s possessions out
on the street and totally displacing them without help,
assistance, or governmental placement is not what a modern
society should do in times of peril.
 THIS WILL ALL BECOME EVEN MORE FRONT AND CENTER
STAGE WHEN FORECLOSURES RESULT IN EVICTIONS.

29 December 6, 2007
PAUL BERNSTEIN’S SUGGESTIONS - II

 Start a TENANTS RIGHTS and REMEDIES
Committee here at the Chicago Bar Association.
 Future Events to pursue such an agenda….just as
our Presidents say “No Child Left Behind”, we
lawyers should have a slogan: “NO TENANT
WITHOUT AN ATTORNEY”!

Paul Bernstein, Attorney At Law

30 December 6, 2007
List of Handouts
 Chicago Residential Landlord and Tenant
Ordinance
 State Statute on Evictions
 Present Bench Book
 Lawrence v Regent Realty
 Pitts v. Holt
 Metroplex v. Powell
 Legal Assistance Foundation Case Law
 Reed v. Burns
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